92 Decision Citation: BVA 92-22320
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-52 506 ) DATE
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THE ISSUE
Entitlement to an increased evaluation for post-traumatic
stress disorder, currently evaluated as 50 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
Kay F. Mayer, Associate Counsel
INTRODUCTION
This matter came to the Board of Veterans' Appeals
(hereinafter Board) on appeal from a rating decision of the
San Francisco, California, Regional Office (hereinafter
RO). The veteran served on active duty during the Vietnam
era. A rating decision dated in March 1988 continued the
veteran's 50 percent evaluation for his service-connected
post-traumatic stress disorder. In May 1988, the veteran
filed a notice of disagreement. A statement of the case was
issued in July 1988 and a substantive appeal was received in
March 1989. At the veteran's request, a hearing was held at
the RO in October 1989. The hearing officer issued his
decision in April 1990; he continued the previously assigned
50 percent rating for the veteran's service-connected
post-traumatic stress disorder and noted that because the
veteran's alcoholism was not service connected it could not
be considered in assigning an evaluation for the veteran's
service-connected post-traumatic stress disorder. Supple-
mental statements of the case were issued in June 1990,
October 1990 and October 1991.
The case was received by the Board in December 1991 and
docketed in January 1992. The veteran has been represented
in his appeal by the Disabled American Veterans. That
organization submitted written argument on behalf of the
veteran in December and March 1992.
REMAND
The veteran and his representative contend that the veteran
is unemployable due to his post-traumatic stress disorder.
The representative also claims that the veteran's substance
abuse and alcohol abuse disorders are manifestations of the
post-traumatic stress disorder. We note that the record
also reflects the presence of a seizure disorder secondary
to the alcohol abuse disorder. These raised issues of
entitlement to a total rating based upon unemployability due
to service-connected disability and entitlement to service
connection for substance abuse, alcohol abuse and a seizure
disorder have not been developed for appellate consideration.
In light of recent decisions of the United States Court of
Veterans Appeals, including Harris v. Derwinski, l Vet.App.
180 (1991), Payne v. Derwinski, 1 Vet.App. 85 (1990) and
EF v. Derwinski, 1 Vet.App. 324 (1991), the Board concludes
that the case should be returned to the RO for development
and adjudication of these raised issues.
Additionally, the Board notes that the March 1991 Department
of Veterans Affairs (hereinafter VA) psychiatric consultation
records indicate the veteran was receiving Social Security
Administration disability benefits. Therefore, the Board
believes the record upon which that determination awarding
disability benefits was based should be obtained. Cashwell
v. Derwinski, U.S. Vet.App. No. 90-967 (February 12, 1992).
Also, because the veteran has had several VA hospitalizations
since his most recent VA psychiatric examination in July
1990, the Board believes a further VA psychiatric
examination is in order.
VA has a duty to assist the veteran in the development of
facts pertinent to his claim. 38 U.S.C. § 5107(a) (1992);
38 C.F.R. § 3.103(a) (1991). The United States Court of
Veterans Appeals has held that the duty to assist the
veteran to support his claim includes obtaining an adequate
VA medical examination. Littke v. Derwinski, 1 Vet.App. 90
(1990).
In addition, in connection with the current claim, as well
as those recently raised, the Board believes that further
medical development, as specified below, is warranted.
Accordingly, the case is REMANDED to the RO for the
following actions:
1. The RO should obtain and associate
with the veteran's claims folder copies
of all treatment records pertaining to
treatment of the veteran for substance
abuse, alcohol abuse, and/or any psychi-
atric disease at the VA medical facili-
ties at Palo Alto and Menlo Park,
California, from February 1988 to the
present. If the veteran has received
pertinent treatment during this time
period from any other health care
provider, the RO should attempt to obtain
a copy of those treatment records as well.
2. The veteran should complete and
return an up-to-date employment and
education statement (VA Form 21-8940),
which should be associated with the
claims file.
3. The RO should obtain from the Social
Security Administration a copy of the
record upon which it based its award of
disability benefits to the veteran.
4. The RO should arrange for a VA psychi-
atric examination of the veteran to
determine the extent of his post-traumatic
stress disorder. In addition, the
examiner is requested to provide an
opinion, with an adequate rationale, as
to whether the veteran's post-traumatic
stress disorder caused, contributed to or
worsened any substance or alcohol abuse
disorder present. Also, a neurological
examination should be performed to
determine whether the veteran has a
seizure disorder which was caused or
worsened by alcohol or substance abuse..
All indicated studies should be performed,
and the claims folder should be made
available to each examiner prior to the
examination.
5. Thereafter, the RO should adjudicate
the claims for entitlement to service
connection for substance and alcohol
abuse. If service connection is granted
for substance or alcohol abuse, the RO
should also adjudicate the issue of
entitlement to service connection for a
seizure disorder on a secondary basis.
In addition, the RO should readjudicate
the claim for an increased rating for
post-traumatic stress disorder. If a
70 percent evaluation is assigned for the
veteran's service-connected
post-traumatic stress disorder and
service connection with a separate
compensable rating is not granted for any
other disability, the RO should adjudicate
whether a l00 percent schedular rating is
warranted under the provisions of
38 C.F.R. § 4.16(c) (1991). If the
current 50 percent rating for the post-
traumatic stress disorder is confirmed
and a combined rating of 100 percent is
not assigned for service-connected
disability, then the RO should adjudicate
the issue of entitlement to a total dis-
ability rating based on individual
unemployability due to service-connected
disabilities.
Then, if appellate review remains in order, a supplemental
statement of the case should be issued for all issues in
appellate status and the veteran and his representative
provided an opportunity for response. Thereafter, the case
should be returned to the Board for further consideration.
By this REMAND, the Board intimates no opinion as to the
ultimate outcomes warranted. No action is required of the
veteran until he is notified.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
JOHN J. CASTELLOT, SR., M.D. SHANE A. DURKIN
ROBERT E. SULLIVAN
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 57 Fed.
Reg. 4126 (1992) (to be codified as 38 C.F.R. § 20.1100(b)).